جستجوی مقالات مرتبط با کلیدواژه "مفهوم قانون" در نشریات گروه "فقه و حقوق"

The complex interplay between Islamic jurisprudence (Fiqh) and law in Iranian society, particularly since the Islamic Revolution of 1979, has sparked intense debates among intellectuals. In navigating legislative impasses within the legal system of the Islamic Republic of Iran, understanding the historical evolution and essence of concepts related to Sharia and law becomes paramount. The historical study of the relationship between these two institutions is integral to comprehending the trajectory of Iranian law and the evolution of Imamia jurisprudence.
     The focus of this study revolves around the perspectives of Sheikh Fazlollah Nuri (1843-1909) and Mirza-ye Naini (Muhammad Hussain Naini) (1860-1936), two pivotal jurists during the Iranian Constitutional Revolution [Asr-e-Mashrooteh] in Iran. Positioned on opposite ends of the Sharia-oriented intellectual spectrum, Sheikh Fazlollah Nuri represents those who question the legitimacy of law, while Mirza-ye Naini embodies those who acknowledge the necessity of law within the framework of Sharia. The uniqueness of this exploration lies in dissecting the assumptions these jurists held regarding Sharia and law, shedding light on the mental constructions that shaped their perspectives.

Research Question:

This research aims to delve into the theories of Sheikh Fazlollah Nuri and Allameh Naini, unraveling their assumptions regarding the concepts of "Sharia" and "Law." The central questions guiding this study include: What are the nuanced readings of Sheikh Fazlollah Nuri and Allameh Naini concerning the institutions of 'Sharia' and 'Law'? How do these readings contribute to conceptualizing the relationship between these two institutions in their views?

Research Hypothesis:

Formulating a comprehensive understanding of the assumptions held by Sheikh Fazlollah Nuri and Mirza-ye Naini regarding Sharia and law requires a nuanced exploration of their respective intellectual frameworks. The hypothesis posited is that Sheikh Fazlollah Nuri, as a representative of the spectrum questioning the legitimacy of law, might emphasize the precedence and superiority of Sharia over legal constructs. On the other hand, Mirza-ye Naini, as a proponent of acknowledging the role of law, is likely to present a perspective that harmonizes the two institutions.

Methodology & Framework, if Applicable:

To address the research questions and test the hypothesis, a componential approach will be employed. Unlike the traditional flow analysis approach, which tends to be reductionist, the componential approach allows for the identification of distinct thoughts and their conflicts within the intellectual frameworks of Sheikh Fazlollah Nuri and Mirza-ye Naini. This method acknowledges the possibility of individuals belonging to multiple thought components rather than being confined to a single flow.
     The study will critically examine existing literature, focusing on the methodologies adopted by previous researchers who have explored the opinions of Constitutional Sharia-oriented individuals. This research distinguishes itself by proposing a new framework that offers a deeper understanding of the relationships between Sharia and law based on the intellectual contributions of Sheikh Fazlollah Nuri and Mirza-ye Naini.
     In the subsequent sections, the article will scrutinize the scope of Sharia as perceived by these jurists, addressing the ongoing debate regarding whether the differences among Sharia-oriented individuals are fundamental or minor. Additionally, a positive exploration of the concept of law for Sheikh Fazlollah Nuri and Mirza-ye Naini will be presented, shedding light on the divergent yet interconnected perspectives of these two influential figures during the Iranian Constitutional Revolution.

Interpretation of the Scope of Sharia: An in-depth analysis of Sheikh Fazlollah Nuri and Mirza-ye Naini's perspectives on the scope of Sharia reveals a nuanced understanding that challenges conventional interpretations. While initial comparisons suggest conflicts, the shared foundations of Imamia jurisprudence among these jurists blur the lines of contention. The assertion that Sheikh Fazlollah Nuri holds a maximalist view of Sharia, contrasting with Mirza-ye Naini's minimalist stance due to the separation of customary and Sharia jurisdictions, lacks substantial evidence. The semantic differences between these two jurists regarding the scope of Sharia appear to be minimal, indicating a convergence in their interpretation of Sharia's principles.
     Conceptualization of Law as the Locus of Conflict: The crux of the divergence between Sheikh Fazlollah Nuri and Mirza-ye Naini lies in their conceptualization of law (Codified Law). Sheikh Fazlollah Nuri perceives law as a substantial, comprehensive entity that contradicts Sharia, leading him to reject the law as a modern concept. His viewpoint aligns with the broader understanding of the "incompatibility between Sharia and law" ideology. In stark contrast, Mirza-ye Naini integrates the law into traditional societal structures, viewing it as consistent with Sharia and not a separate, non-religious entity. His perspective positions the law as a formal interpretation reflecting religious rulings in the legal domain, highlighting a compatibility between Sharia and law.

This research sought to reevaluate the theories of Sheikh Fazlollah Nuri and Mirza-ye Naini regarding Sharia and law during the Constitutional Era in Iran. The examination focused on two crucial aspects: the interpretation of the scope of Sharia and the conceptualization of the law. Within the ideological backdrop of the era, the study positioned the opinions of these two jurists under the overarching ideologies of "incompatibility between jurisprudence and law," "Sharia-oriented thinking," and "collectivism."
     Regarding the interpretation of the scope of Sharia, the research found that semantic differences between Sheikh Fazlollah Nuri and Mirza-ye Naini were minimal, challenging the commonly held belief of maximalist and minimalist views. Both jurists, rooted in Imamia jurisprudence, shared foundational principles of Sharia, mitigating potential conflicts in their interpretations.
     The conceptualization of law emerged as the focal point of disagreement between the two jurists. Sheikh Fazlollah Nuri rejected the law as a modern, comprehensive entity incompatible with Sharia, aligning with the broader narrative of incompatibility. In contrast, Mirza-ye Naini perceived the law as an integral part of traditional societies, deeming it consistent with Sharia and serving as an expression of religious rulings in the legal domain.
     In essence, while Sheikh Fazlollah Nuri and Mirza-ye Naini both identified as Sharia-oriented thinkers, their divergence lay in their understanding of the law. Sheikh Fazlollah Nuri's rejection of the law paralleled the incompatibility ideology, while Mirza-ye Naini's integration of the law within religious frameworks resonated with the collectivist perspective. This nuanced exploration contributes to a more nuanced understanding of the intellectual landscape during the Constitutional Era in Iran, shedding light on the intricate relationship between Sharia and law as perceived by these influential jurists.

Although philosophizing in the concept of law is as old as the history of philosophy and the history of law, the question of what law is, especially in contemporary centuries, has been one of the most central topics of legal philosophy, especially in its positivist tradition. The importance of the philosophy of law is evaluated due to the special role of the law in the socio-political developments of human societies and the transition from traditional rights and religious rights to modern and post-modern laws, because the law is considered a logical and rational tool for the application of the last public will, which itself results from the formation of Governments arise from the same social contract. This research aims to compare the question of the nature of law in the thought of legal philosophers in its positivist tradition and to answer this important question whether with the formation of modern societies and legal modernity it is possible to find an escape from the law and the rule of law or an alternative to it. The findings of this research will show the law and its sovereignty as a clear symbol of the public will resulting from the social contract in the thought of legal philosophers In its positivist tradition, what are the commonalities and differences and the result of this research will show that with the formation of modern societies and legal modernity, no escape or alternative has been provided for the law and the paradigm of law and its rule is still the dominant paradigm.

More than a century ago, a great revolution occurred in Iran, the fundamental aim of which was to establish a rule of law system. Accordingly, the concept of law has been one of the most essential though challenging concepts of the constitutionalist movement in the country. This issue is so significant that we may seek the root of the Iranian constitutional crisis in the failure of providing a clear and workable concept of law. A serious impediment in this regard was the old concept and system of Shar`, which prima facie left no room for law. Shari`atist thinkers took two approaches to the relationship between law and Shar`: compatibility and incompatibility. Not only did the compatibility approach believe in the possibility of combination and sometimes identity of Shar`i and legal rules, it finally gave the upper hand to law and its requirements. One of the fundamental disputes related to the legislating authority. Shari`atists ultimately embraced legislation by the human being. Nevertheless, this brought about controversies and debates on the last prophet-hoodness of Muhammad (pbuh), religious innovation, and rational preference. This paper shall analyse the concept of law from the perspective of Shari`atist thinkers living during the Iranian Constitutional Revolution era, on the basis of their works and the related documents. This analysis will lay the historical and theoretical ground for the similar and still unresolved problem under the legal system established after the Islamic Revolution in the Country.

The law is the main center of modern legal system. Iranians were acquainted with the law in constitutional era. Entering this concept in iran created different views. The ideas created range of views, which For his part cause actual events in the Constitutional Revolution and the writing of the constitution. In fact, this views about modernity. This opinions effected on writing Qajar constitution . This developer comments are divided into three categories: progressive, eclectic and against modernity. The first group wanted western law, the second group also wanted western law and islamic jurisprudence and the third group opposed to Western law and only wanted Islamic law. Understanding the law leads to a deeper knowledge of the identity of the Iranian legal system. Also, any talk about rule of law and legislation after reaching a clear idea of the law will occur. This research was performed with descriptive and historical approach.

The concept of law has been one of the fundamental, though controversial, concepts for early constitutional writers. This concept was discussed in a context in which the absolute monarchy, on one hand, and the conservative and traditional sharia-based religion, on the other, had intermingled the possibility of building and establishing the law in its strict sense with political considerations and sometimes incorrect readings. There already existed two normative systems: the conventional system of the monarchy and its bureaucracy and the sharia. The latter one of course had put forward the exclusive claim on the concept of law. In result, it seemed that the most important problem in the way of building and developing the modern law in Iran at that time was the very problem of relationship between law and sharia. Early constitutional writers on the concept of law, however, believed in the following basic requirements of a modern law: humanly enacted, reflecting the public will and being flexible.

Emergence of the concept of law in the Constitutional era should be considered as the result of intellectual endeavours of those thinkers who had striven to explain it long before the official date of the Constitutional Revolution (1906). Therefore, learning about intellectual and objective backgrounds and also about the first discussions and analyses on the nature of law will bear great insights. This paper shall deal with the development of idea of change in the political system in the pre-Constitutional time up to the Constitutional Revolution. This in fact reveals the process of emergence and evolution of the concept of law among the thinker or that era. It was not an accident that people sought a constitutional system and laws appropriate to this system. The existence of an unregulated (independent) absolute monarchy accompanied with an absolute law and then introduction of the idea of a regulated absolute monarchy along with the law as regulations were all background elements that contributed to the rise of a will for a constitutional system which in turn had occupied the mind of the main constitutional thinkers. Law for them was the law of a constitutional system. This understanding went serious changes later on.

Interpretation is the principal tool in legal studies. In order to promotion methods interpretation methods it is necessary to get help from modern linguistic sciences. The studies available on Hart’s method in the “concept of law” advocate efficiency of analytical philosophy to clarify ambiguous legal concepts. Analytical philosophy, the principal field in philosophic practice in the second half of the twentieth century in Anglo Saxon world, pursues exact and astute analysis of concepts. Hart as analytic philosopher uses this method for analysing concept of law to reveal efficiency of this philosophy for legal interpretation and jurisprudence. In this article, an investigation is done to pinpoint a comprehensive definition of law and jurisprudence in terms of Hart's model. In particular the ability of this approach in the interpretation of law and jurisprudence based on Hart's method in the "concept of law", inclusive and exclusive definition, clarifying ambiguous legal words and correction legal language based on Hart's method are elaborated.